Horowitz and Cole and Anor
[2014] FamCA 222
•25 March 2014
FAMILY COURT OF AUSTRALIA
| HOROWITZ & COLE AND ANOR | [2014] FamCA 222 |
| FAMILY LAW – CHILDREN – Where the mother did not attend at the hearing – Where the Court proceeded to hear the matter in the mother’s absence in light of the history of the proceedings, the circumstances of the children and Rule 16.07 of the Family Law Rules (Cth) – Where the children were in the care of the Department of Family and Community Services at the time of the hearing – Where each parent presents risk factors – Where neither parent has presented with a parenting capacity for the Court to make an order for the children to live in their care – Where the Court is satisfied it is in the children’s best interests to remain in the care of the Department and for the Department to exercise solely parental responsibility for them – Orders made by consent of the father, the Department and the Independent Children’s Lawyer |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 (Cth) r 16.07 |
| Duke-Randall & Randall [2014] FamCA 126 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 SCVG & KLD [2014] FamCAFC 42 |
| APPLICANT: | Mr Horowitz |
| RESPONDENT: | Ms Cole |
| INTERVENOR: | Secretary of the Department of Family and Community Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Shirlaw |
| FILE NUMBER: | DUC | 27 | of | 2011 |
| DATE DELIVERED: | Orders on 25 March 2014; Judgment on 4 April 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Dubbo |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 24 & 25 March 2014 |
REPRESENTATION
THE APPLICANT: | Self-represented Litigant |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INTERVENOR: | Mr Moore |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor's Office |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Dubbo |
Orders
Parental Responsibility
All existing parenting orders are discharged.
Parental responsibility for the children X born … 2007, Y born … 2008 and Z born … 2009 (collectively “the children”) be exercised solely by the Minister for Family and Community Services (“Minister”) until they each attain the age of 18 years.
Live With
The children live as directed by the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate.
Spend Time With
The children spend supervised time with Ms Cole (“Mother”) on a minimum of four (4) occasions per year for a period of up to four (4) hours on each occasion, subject to Orders 5, 6, 11 and 12 of these Orders.
The time to be spent between the Mother and the children is to occur on such dates and at such times as are agreed between a delegate of the Secretary and the Mother and failing agreement, is to occur on a date and at a time as nominated by a delegate of the Secretary.
All time spent by the Mother with the children is to be supervised by a person deemed by the Secretary or his delegate to be an appropriate supervisor.
Unless otherwise agreed between the Secretary’s delegate and Mr Horowitz (“Father”), or if the Father is in custody, the children shall spend time with their Father as follows:
a.Once per fortnight for a period of one month for one (1) hour;
b.Commencing May 2014, once per fortnight for a period of two (2) hours;
c.Commencing June 2014 once per fortnight for a period of three (3) hours;
d.Commencing July 2014, once per month for one (1) day between 10am and 4pm;
e.From October 2014, once per month from 4pm on a day agreed by the Secretary’s delegate and the Father and failing agreement, a day nominated by the Secretary, to 4pm on the next day;
f.Such other times as may be agreed between the Secretary’s delegate and the Father.
The time in Orders 7(a), (b) and (c) shall be supervised by a person deemed by the Secretary or his delegate to be an appropriate supervisor and shall occur on a date and at such times and locations as nominated by a delegate of the Secretary.
The time in Orders 7(d), and (e) shall take place at the home of the Ms JJ and shall occur in her presence.
The time in Order 7 is conditional upon:
a. The Father not consuming illicit drugs or being under the influence of alcohol whilst the children, or any of them, are spending time with him, or in the period 12 hours prior to the children spending time with them;
b. The Father not allowing the children to spend time or communicate with the Mother;
c. The children not attending the premises, Lot 1, BB Street, Town CC unless he obtains the prior written approval of the Secretary or his delegate;
d.The Father contacting the Secretary’s delegate 24 hours prior to the commencement of the time the children are to spend with him.
Injunction/Restraint
The Mother and Father are hereby each restrained by injunction from:
a. Consuming illicit drugs or being under the influence of alcohol whilst the children, or any of them, are spending time with them, and in the period 12 hours prior to the children spending time with them;
b. Abusing, insulting or denigrating the children, or any of the other parties, or a member of their family or household to or in the presence or hearing of the children and each party will use all reasonable efforts to ensure that anyone over who they have control or influence does not denigrate the other party, the other party’s partner, or members of the other party’s family in the presence or hearing of any of the children;
c. Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;
d. Exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children;
e. Physically disciplining or striking any of the children;
f. Questioning the children about the appropriateness of their carer or any carer’s partner’s behaviour or parenting while taking care of or spending time with the children;
g.Failing to take medication as prescribed by a medical practitioner;
h.The Mother and Father are restrained from approaching, harassing or intimidating one another; and
i.The Mother is restrained from contacting or communicating with the children or attending upon any school or extra-curricular activities the children attend or approaching any premises were the children from time to time reside or approaching within 100 metres of the premises where the children reside or spend time with their Father.
(12) The Mother and Father will submit to random urinalysis drug testing, no more than once per month, unless otherwise agreed, as directed by the Secretary or his delegate.
(13) The Mother and Father will inform the Secretary’s delegate of any change of residential address or telephone number within 7 days.
This Order provides authority for the Father to obtain any relevant information about the children’s health, education and development upon the Father requesting such information from the Secretary’s delegate including school reports and photographs.
The Court accepts the undertaking of Ms JJ, being Annexure A to the Orders made by the Family Court of Australia at Dubbo on 25 March 2014.
IT IS NOTED THAT:
A.The Secretary proposes to direct that the children live together with their current authorised carer.
B.The Secretary proposes to regularly review the arrangements for the care, welfare and development of the children. Such reviews include the arrangements for the children to spend time with either parent and residence. Both parents will be consulted during the review process and will be informed of the outcome.
IT IS FURTHER ORDERED THAT:
The Court will deliver reasons for judgment on a date to be fixed.
The Department effect personal service of a sealed copy of the orders made today upon the Mother as soon as practicable.
The application for costs by the Independent Children’s Lawyer be dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horowitz & Cole and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT DUBBO |
FILE NUMBER: DUC 27 of 2011
| Mr Horowitz |
Applicant
And
| Ms Cole |
Respondent
And
Secretary of the Department of Family and Community Services
Intervener
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 25 March 2014, the Court made Orders following a hearing at which the Respondent mother failed to appear, with reasons for those Orders reserved. The following are those Reasons for Judgment.
The children, the subject of these proceedings, are presently in the care of the Department of Family and Community Services (“the Department”). The mother and father have limited contact with the children.
The children are X, born in 2007, now almost seven years of age, Y, born in 2008, now six years of age, and Z, born in 2009, now four and a half years of age.
The parties were in a relationship for nearly five years, from late 2005 to August 2010.
The mother has another child from an earlier relationship, N, born in 2002. N lives with his father in Queensland and spends no time with the mother.
The parties’ separation and thereafter
Following the mother and father’s separation in August 2010, the father in November 2010 attended at the mother’s home and removed the children from her care. At that time the father was concerned as to the mother’s ability to care for the children due to what he alleged was her drug taking and chaotic lifestyle.
Shortly thereafter, the parenting proceedings were commenced in the Local Court and interim Orders were made for the children to live with the mother and for the mother to have sole parental responsibility and for the father to have time with the children each Thursday and Friday between 9.00 am and 5.00 pm.
Subsequently the matter was transferred to the Federal Magistrates Court (as it then was) and on 2 August 2011 the father’s time with the children was changed to each Monday and Thursday between 10.00 am and 5.00 pm.
The involvement of the Department
On 2 August 2011 the Court invited the Department of Family and Community Services to intervene in the proceedings as a consequence of the court’s concerns relating to the children. At first the Department declined to intervene. On 18 February 2013, following the release of the Family Report, the Court requested the Department to reconsider its decision.
On 28 June 2013 the Department intervened in these proceedings.
The Department had a long history of involvement in the mother’s former household commencing in January 2004, with a number of risk of harm reports being made.
Reported concerns included, but were not limited to:
a)the mother’s abuse of alcohol, cannabis and amphetamines;
b)physical neglect of the child N;
c)transiency; and
d)domestic violence between the mother and her then partner, the father of N.
On 22 July 2005 the child N was placed with authorised carers pursuant to a temporary care arrangement between the mother and the Department. In August 2005 N’s father commenced proceedings seeking orders that N live with him. Notwithstanding Final Orders made in relation to N in October 2005 that provided for the child to live with the mother and spend time with the father, in April 2010 the child commenced to live with his father.
The Department has had a long history of involvement with the mother’s present household commencing in May 2007. Subsequent to that date there have been 59 risk of harm reports in relation to one or more of the children the subject of these proceedings or N, who was the subject of 28 of those reports. Reported concerns included, but were not limited to:
a)the children’s exposure to domestic violence between the father and the mother;
b)drug abuse by the mother and the father, including the mother’s use of amphetamines and cannabis whilst pregnant;
c)the father’s possession of ammunition without a licence or permit;
d)the failure of the mother and the father to obtain medical treatment for the children;
e)neglect; and
f)inadequate supervision.
The mother has a history of variable cooperation and engagement with the Department and the services provided by the Department.
The Family Report (Exhibit A) was released on 18 February 2013. After a detailed consideration of the sad and sorry history of the parties’ relationship, their allegations one against the other and the then circumstances of the children in the mother’s care, the Family Report writer recommended:
a)That the Department be invited to intervene;
b)That the Court determine whether the children would be at unacceptable risk of harm in either parent’s care;
c)That the matter be expedited; and
d)That further subpoena issue as referred to in the Report.
In March 2013 the relevant Tribunal, as a consequence of rental arrears, terminated the mother’s tenancy agreement on a residential property in Town M, NSW.
The Department, following release of the Family Report, determined that the children were unsafe in the mother’s care.
On 8 April 2013 the mother entered into a temporary care arrangement with the Department for a period of up to 3 months. The Department held ongoing concerns in relation to the mother’s eviction from her home, the condition of the home she had provided for the children, her inability to provide the children with essentials, such as shoes and clothes, and ongoing issues with drug abuse.
Under the temporary care arrangement the Department placed the children with authorised carers. At first the older children X and Y were placed together and Z was placed in a separate placement. On 28 June 2013 the child Z was placed with the older children.
The Department received further risk of harm reports in relation to the children firstly from the maternal grandmother who expressed concerns that the children would be in serious danger if they were returned to the mother, and then from a staff member from Town DD School, who reported that the mother had attended at the school intoxicated and acting erratically.
On 28 June 2013 Orders were made by the Federal Circuit Court that provided for the Department to have parental responsibility for the children, that the children’s living arrangements be as the Department directs and that the children spend time with the mother and the father supervised by the Department once a fortnight for a period of up to one hour.
The parent’s time with the children while in care
The Department reports that following Orders made on 28 June 2013 the father’s contact with the children has been consistent and well prepared. The father and his partner, Ms JJ, are careful about what discussions are had with the children and appeared child-focused. The Department concludes that the father’s contact has been positive for the children.
The Department has had concerns about the mother’s contact with the children since June 2013. The Department reports that the mother’s time with the children appears disorganised, that the mother does not appear to be child-focused, influencing her conversations and into reactions with the children. Whilst it is observed that the children enjoy spending time with the mother, they react emotionally and there are indicators of trauma in their reactions towards the mother.
The mother on a number of occasions has failed to attend for her time with the children.
The Department’s recent involvement with the mother
The mother has criminal convictions for contravening an apprehended violence order, driving unlicensed, possession of equipment for administering prohibited drugs and furnishing false information.
Since 11 April 2013 the mother has undergone 19 urinalysis drug tests at the request of the Department. Two of the tests did not meet integrity criteria. In 12 of the tests the mother tested positive for THC (cannabis metabolite) and has also tested positive for codeine, morphine, oxazepam, temazepam and nordazepam. These results have heightened the Department’s concerns in relation to the mother.
For the purposes of the children’s time with the mother the Department arranged for the external supervisors to provide transport for the mother to and from contact. However, in late January 2014, the Department informed the mother that the supervisors were no longer able to provide that assistance. The mother sought to have the Department bring the children to her in circumstances whereby she asserted that she had no car and, even if she did, no money to put petrol in the car. The mother informed the Department that she was not prepared to use public transport to facilitate her time with the children. The mother thereafter has been abusive of the Departmental caseworkers and on one occasion threatened to slit the throat of a caseworker.
On 12 February 2014 the mother’s behaviour caused the Department to have concerns sufficient for the Department to notify the children’s school and preschool and the local police command of the mother’s heightened state in circumstances where there were concerns for the children’s’ safety.
The father’s engagement with the Department.
The father has been convicted of various offences including, but not limited to:
a)possess prohibited drug (June 2008 – two months imprisonment);
b)common assault (convicted – a good behaviour bond);
c)cultivate prohibited drug and supply prohibited drug (June 2005 – 18 months imprisonment non-parole period of 12 months);
d)possession of equipment for administering prohibited drugs;
e)goods in custody suspected of being stolen (six months imprisonment);
f)use of a firearm in a manner likely to injure persons/property (12 months imprisonment – concurrently with c)); and
g)contravene restriction in an apprehended violence order (14 months imprisonment – non-parole period eight months concluding 6 April 2012).
The father has an outstanding criminal charge in relation to goods in custody suspected of being stolen that is listed for hearing on 23 May 2014. He has been advised by his lawyer in those proceedings that, by reason of the circumstances of the offence, he will not be sentenced to a period of imprisonment.
Following release of the Family Report, the Department held ongoing concerns in relation to the father’s drug use and that of his partner, Ms JJ.
As to Ms JJ, the Department acknowledged that it had made no enquiries as to her background at all.
The father presently resides with his partner in circumstances where their relationship and their accommodation arrangements have not been the subject of assessment by the Department. The father asserts that he has not used cannabis or other illegal drugs for three years. The home in which he resides with his partner is a three-bedroom home provided to his partner by the Department of Housing.
Should the children reside with him he proposes that they attend Town CC Primary School or, in the alternative, Town M Primary School.
Ms JJ has resided in her home for about six years. The father currently resides at that home, except for the time that he and Ms JJ spend at the Town CC property (see below) to undertake work.
Ms JJ’s home in Town M is a comfortable three-bedroom cottage rented by her from the Department of Housing. She has known the father for about 10 years. The father commenced to stay with her about two years ago. Ms JJ is 42 years of age and has two adult children aged 24 and 21 that do not reside with her. The youngest child resides nearby in Town M with her maternal grandmother. Previously, Ms JJ had an Apprehended Violence Order against the mother restraining the mother from contacting or approaching her. She understands that Order has now expired. She would welcome the children spending time with the father in her home and, indeed, living in her home. The children know her as “Aunty …”.
Regrettably, the Department prior to trial was not unaware as to the circumstances and nature of the father’s relationship with Ms JJ, nor has the Department assessed the father in relation to the children living with him as at the relevant times he was not the primary care giver. The Department will undertake in due course an assessment of that relationship and the father’s living circumstances with Ms JJ in the context of determining arrangements for the father’s time other than may be ordered in these proceedings.
Notwithstanding the children being in a stable care placement, the children circumstances can be reassessed in terms of their time or, indeed, their placement with the father in due course.
The children’s present circumstances
The eldest child X attends Town AA Primary School and is described as a quiet, hard-working student with lovely manners who has settled well into class and school routines. X suffers from congenital nystagmus, an eye condition, and a hearing issue. A consultant paediatrician has reviewed him with recommendations for review by a paediatric ophthalmologist and counselling for behavioural issues arising out of his present circumstances, particularly his mother’s non-attendance for contact.
The middle child Y is in Kindergarten at Town AA Primary School. Y was seen in September 2013 by a consultant paediatrician as a consequence of behavioural issues. He presented as a playful, happy child, who related well. The child has a heart murmur that will be further reviewed by a paediatric cardiologist. Counselling was recommended in relation to the child due to reported behavioural and emotional issues.
The youngest child Z attends preschool Kindergarten five days a week in Town AA. She has a congenital deficiency of the fingers of her left hand with an absent left middle ring and little finger, shortened index finger and shortened thumb. She has received treatment at the Children’s Hospital at Westmead for this condition. In November 2012 it was recommended that any remedial surgery on her hand be delayed for some time whilst awaiting the development of her skeleton. In July 2013 Dr EE, the local General Practitioner, reported the concerns of the foster carer that the child has behavioural issues, speech problems as well as vision and hearing problems. The child was referred for review by a consultant paediatrician in September 2013. Hearing tests for the child were normal. The child, having settled, is now doing particularly well at preschool.
All of the children have been referred for counselling.
The mother’s participation in the proceedings
On 20 August 2013 these proceedings were transferred from the Federal Circuit Court to this Court for the purposes of the matter proceeding to final hearing with an estimated duration of five days, as a matter of urgency. On that date the mother was represented by her solicitor.
On 8 October 2013 the matter came before a Registrar of this Court with the parties ordered to file any amended application or response and the matter being referred to a Judge for hearing of the matter, preferably in Dubbo. The mother filed an affidavit on 15 November 2013 and an Amended Response on 18 November 2013.
On 6 December 2013 trial directions were made and the matter was adjourned for hearing, commencing 24 March 2014, in the Dubbo Registry. On that day the mother was represented by her solicitor.
On 3 March 2014 the matter came before a Registrar for a compliance check. At that time neither the mother nor the father had filed any affidavit evidence pursuant to the trial directions. The mother was represented by her solicitor and sought a further additional two weeks to file her affidavit material. Trial dates were confirmed with the matter remaining listed for hearing.
On 11 March 2014 the mother’s solicitor filed a Notice of Ceasing to Act.
The proceedings were called on for trial shortly before 11.00 am on 24 March 2014. There was no appearance by or on behalf of the Respondent mother. The father appeared unrepresented. Mr Moore of counsel appeared on behalf of the Department and Ms Shirlaw, solicitor, as the Independent Children’s Lawyer.
The mother has been represented in these proceedings until her solicitor ceased to act. There is no reason to suggest or infer that she was not informed of the trial dates by her solicitor. On an occasion of the mother failing to attend for contact the caseworker reminded the mother by telephone of the forthcoming hearing dates.
On the morning of the hearing the Independent Children’s Lawyer endeavoured to contact the mother on her mobile telephone and there was no answer. Subsequently, during a break in the evidence later in the morning the Independent Children’s Lawyer informed the Court that she had spoken to the mother who asserted that she did not know of the dates for the hearing and as a consequence of “tenancy issues” she was unable to attend Court.
Should the hearing proceed in the mother’s absence?
The Independent Children’s Lawyer, counsel for the Department and the father urged the Court to proceed to hear the matter, notwithstanding the mother’s non-attendance.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3)…
In the event that the Court was not disposed to apply the provisions of Rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother’s involvement and leave uncertain the circumstances of the three children.
Considerations pertaining to an adjournment of proceedings particularly in relation to parenting proceedings have previously been considered by me in Duke-Randall & Randall [2014] FamCA 126 as follows:
88.In Jarrah & Fadel [2014] FamCAFC 14, the Full Court of the Family Court of Australia refused to allow the husband a further adjournment of the final hearing. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
89.Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
90. Her Honour went on to say at [11]:
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
91.Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that given the history of the litigation it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
92.In the earlier decision of Farmer and Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
See also Reynolds v Reynolds (1973) 1 ALR 318 per Mason J at 322-325; M v M [1988] HCA 68; (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76; U v U [2002] HCA 36; (2002-03) 211 CLR 238 per Hayne J at 285 and JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 per Kirby J at 1332.
93. The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
…
The background to these proceedings has been set out above. It is imperative that the children in these proceedings have their best interests considered not at some future indeterminate time and at further cost to the taxpayer of the Department, its counsel and the Independent Children’s Lawyer, but in a timely manner.
These are proceedings being heard in a special sitting of the Court in Dubbo and the matter has been allocated three to four days for trial. There would be significant costs to be incurred by the taxpayer in an adjournment and a later listing for trial again in Dubbo with the prospect that trial dates would be at least six months off.
The Court has allocated significant resources to list the matter for hearing in Dubbo.
The author of the Family Report is available to give evidence as prearranged, if required.
The matter had previously been listed for hearing in Dubbo in July 2013, but those dates were vacated as neither parent was ready on that occasion.
In those circumstances, and under Rule 16.07, the hearing was directed to proceed.
The Issues for determination
The issues for determination are:
a)What are the best interests’ considerations for these children?
i)Should the children remain in the care of the Department?
ii)Should the children return to reside with either of the parents?
iii)If not, what time should the children spend with each of the parents?
b)Who should have parental responsibility for these children?
c)Should there be protective orders made in relation to the children?
What are best interests’ considerations for the children?
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286, SCVG & KLD [2014] FamCAFC 42.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the children.
The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the children or family violence;
b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order; or
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
The primary considerations in determining what is in the children’s best interests are, firstly, the benefit to the children of having a meaningful relationship with both of the parents and, secondly, the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. These primary considerations will be looked at shortly.
The additional considerations are set out in section 60 CC(3) and are considered below.
a)Any views expressed by the children:
At the time of the Family Report interviews in January 2013, the children Y and Z were not interviewed due to their young ages. They did participate in playroom observations with each parent. The eldest child X presented to the report writer as somewhat shy and reserved and gave limited information. Given his young age and the serious allegations in this case in respect of both parent’s parental capacity, the report writer suggests the Court could place no weight on his stated wishes and views. This consideration is of no assistance to the Court.
b)The nature of the children’s relationships:
Following an interview with the child X and observations of the three children with the mother and separately with the father and Ms JJ, the report writer concludes that the children appear to have an established relationship with both parents with no attachment preference between the parents. An expressed preference by the child X to live with the father appeared to be more about what kinds of activities were available on the father’s country property. Noting that the children had been in the mother’s primary care since August 2010, the report writer was of the view that it was possible that she is their primary attachment figure based purely on continuity of care. The father inappropriately, during the observation session with the children, used the time to ask the children questions about their time with the mother and to attempt to ensure that the reporter was made aware of any negative aspects of this. The children would detect as a consequence that the father held negative views about the mother. The children related to Ms JJ in a friendly manner and she engaged appropriately with the children during the observation session.
c)Willingness to promote a relationship between the children and the other parent:
The relationship between the parents is non-existent. Their relationship was marked by violence, drug use and an inability to appropriately care for these young children. The mother expresses animosity on an ongoing basis towards the father and Ms JJ, often in the presence of the children. The father, as observed above, inappropriately engaged the children in negative comments in relation to the mother. Neither parent demonstrates an appropriate willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent.
d)The likely effect of any changes in the children’s circumstances:
The children are presently in a well-settled foster care arrangement in Town AA. The two elder children are at the local school and Z is attending preschool. Following initial problems, the children are now reasonably well settled in their current arrangements. Subsequent to placement they have been engaged appropriately with health professionals in respect to each of their particular needs as referred to above.
The father’s proposal is that the children should reside primarily with him and the mother’s proposal is that the children should reside primarily with her. The father’s proposal would involve a substantial disruption of the children back to Town M and into a household with which they have little familiarity. The father is yet to be assessed in his present living circumstances but his history creates significant reservations as to his ability to provide for the needs of three young children.
The mother’s proposal would also involve a substantial disruption of the children back to Town M and into most uncertain circumstances. The mother has repeatedly requested Departmental financial assistance for the basic necessities of life. She has demonstrated an inability to properly manage her finances and her capacity to provide ongoing settled accommodation and for the future of these children in her care is subject to extreme doubt. The mother presents as a risk to the children by reason of her ongoing drug use and history of inadequate care for the children.
A change in the children’s present arrangements would involve significant risk to the prospect of an ongoing settled living circumstance. Thus, it is indicated that maintaining of the children’s present arrangements is preferred.
e)The practical difficulty and expense of the children spending time with each of the parents:
Both parents reside primarily in Town M. Should the children live with either of them, there would be no difficulty physically in the children spending time with each of the parents. However, the nature of the conflictual relationship between the parents provides no comfort that in reality time would happen as ordered or at all. The children have been spending time with each of the parents under arrangements facilitated by the Department. The mother has a poor history as to her presentation for time with the children and in relation to her demeanour and cooperation with the Department. The father has been a regular and child-focused in his time with the children as supervised through the Department. Should the children remain in their present arrangements the father would continue to see the children in terms of any arrangement facilitated by the Department or Court order. As to the mother there are significant reservations as to her capacity to spend time with the children as may be ordered by the Court or facilitated by the Department. However, the remedy for that is in her hands.
f)The capacity of the parents to provide for the needs of the children:
During observation the Family Report writer found that the mother showed some capacity to interact with the children in a manner appropriate with their age and stage of development. The father, says the report writer, used a warm tone and affectionate names when addressing the children but showed limited capacity to engage in play with the children at their developmental level. More importantly, observes the report writer, there are extremely serious and concerning allegations that have been made about the parenting capacity of both parents.
The father alleges the mother is a chronic methamphetamine and cannabis user who leads a chaotic lifestyle marked by conflict with her family, associates and neighbours. The father alleges that the mother’s entire parenting history is one of chronic serious neglect of all four of her children that led to her child N (of a previous relationship) being placed with his father. Substantially, the evidence before the Court gives weight to the father’s allegations.
The mother alleges that the father was a chronic methamphetamine and cannabis user who was involved in the manufacture and distribution of these illicit substances and had convictions for such offences as well as for assault and possession of firearms. She claimed, says the report writer, that the father has shown little capacity to provide for the children on a day-to-day basis. Further, the mother described serious physical violence towards her during their relationship as well as controlling behaviours, intimidation and harassment both during and post separation. The evidence before the Court gives significant weight to the mother’s allegations.
Following the intervention of the Department, the mother has continued to demonstrate an inability to manage even her own circumstances and has continued to engage in drug use as evidenced by analysis results referred to above. The mother has little capacity at present to meet the needs of these young children, including their emotional and intellectual needs. Similarly, the father in this regard is untested in his present living arrangements with Ms JJ, but since the intervention of the Department, it appears he has done all asked of him in terms of his interaction with the children. At present neither parent has demonstrated an appropriate capacity that would facilitate the Court giving consideration to the children living with either of them.
g)The maturity, sex, lifestyle and background of the children:
This factor is important in the context of the children’s ages which render them vulnerable to exposure to risk and inappropriate behaviour by the mother and father. The present arrangements in care provide a suitable protective umbrella for these young children.
h)(Not applicable)
i)The parents’ attitude to the children and their responsibilities of parenthood:
It is clear from the matters set out above that neither parent has an appropriate attitude to the children or their responsibilities of parenthood as the parents have placed their own needs, particularly in terms of historical and ongoing drug use by the mother and the father’s historical drug use and criminality, in priority to the needs of these young children. The allegations of the parents, one against the other, in terms of domestic violence within their household further diminishes the Court’s assessment of their capacity in this regard. A continuation of the children’s current placement would prevent the children from being exposed to their parent’s deficiencies in this regard.
j)Family violence:
The parents make allegations one against the other in terms of family violence, both physically and non-physically, within their relationship. The Court is satisfied that the children have been exposed inappropriately to family violence within the household and, indeed, the children, particularly the older children, have recollections of their parent’s unseemly behaviour. The children’s disclosures to the Department revealed that the mother was the more aggressive and verbal in the context of the parties’ domestic violence, with the father being more sedate and non-verbal. In this context the older children expressed a wish to live with the father as “dad did not yell”.
k)(Not applicable)
l)Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children:
The children are in care under the supervision of the Department. The Department is able to monitor, supervise and facilitate time between the parents and the children into the future. The children may transition from their current care arrangement into the primary care of one or other of the parents, if appropriately assessed by the Department. At trial it became apparent that the Department had undertaken no assessment of the father’s present parenting capacity, his accommodation circumstances and his relationship with Ms JJ. That will be undertaken on an ongoing basis into the future in the event that the children remain in Departmental care. Similarly, the mother’s circumstances will be assessed on an ongoing basis. Consideration of this factor supports the children remaining in the protective care of the Department and the Department facilitating the children’s time with each of the parents. The future arrangements depend very much on one or other of the parents presenting as appropriate carers for the children and the Department considering a transition of the children from the care arrangement into the care of either parent. On this basis orders confirming the present Departmental arrangements with the children are indicated as final orders.
m)Any other fact or circumstance the Court thinks relevant:
There are no other matters that are considered relevant.
The two primary considerations as to the children’s best interests have been referred to above and are considered below:
a)the benefit to the children of having a meaningful relationship with both of the children’s parents:
“A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one”: Mazorski & Albright [2007] FamCA 520 per Brown J. It is important for the children to be able to develop relationships that are positive, significant and valuable with both parents. This means a relationship free from parental conflict, risk of harm, the overshadowing of drug use, itinerant accommodation, criminality and inadequate care, with the children able to grow and develop in their relationship with each of his parents without interference or manipulation from the other. At present neither parent offers to the children circumstances that would facilitate the development of a meaningful relationship that is important, significant and valuable to the children. Each of the parents’ present circumstances continue to be problematic for the children, even though their tumultuous relationship with each other has ended. This consideration is indicative of orders providing that the children continue to remain in care and spend time with each parent facilitated by the Department.
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence:
The children have been removed from a domestic situation during the parties’ cohabitation that was marked by domestic violence, chronic serious drug abuse by both parents and inadequate care including inadequate housing, clothing, supervision and failure to attend to the children’s medical care in a timely manner including vaccinations, necessitating numerous risk of harm reports to the Department and ultimately the intervention of the Department when the children were in the mother’s primary care. It is important for these children that they not be returned to the care of either parent whilst that parent’s circumstances remain unsatisfactory and presents as a risk to the children.
Retention of the children’s present arrangements in care provides a protective umbrella from the concerns emanating from each of the parents. The mother presents as an ongoing significant risk to the children for reasons as set out above. The Department will assess the father as it considers his continuing involvement with the children in time to be at first monitored by the Department.
In considering the above matters, it is clear that the best interests of the children are served by the children remaining in care under the auspices of the Department and the Department facilitating each of the parent’s time with the children.
Who should have parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the child’s parents to have equal shared parental responsibility.
The consideration of the children’s best interests, set out above, clearly indicate that, in all the circumstances, it is not in their best interests for the parents to retain parental responsibility for the children and for the parents, most certainly, not to have equal shared parental responsibility.
Accordingly, the presumption provided for in this provision is rebutted and the Court need not consider the question of equal or substantial and significant time for the children with each of the parents (section 65DAA).
It is clear that, in the circumstances of this matter and in the best interests of the children, parental responsibility should repose in the Department.
Should there be protective orders made in relation to the children?
It was the application of the Independent Children’s Lawyer that the children’s time with the mother and father be subject to various restraints.
As to the father, the Independent Children’s Lawyer sought restraints that, in summary, provided for the father’s time to be conditional upon:
a)the father being restrained from consuming illicit drugs or being under the influence of alcohol whilst the children were spending time with him or for a period 12 hours prior to such time;
b)the father not facilitating the children spending time or communicating with the mother;
c)the children not attending the father’s premises at Town CC, NSW unless he obtains the prior written approval of the Department; and
d)the father contacting the Department 24 hours prior to the commencement of the time the children are to spend with him.
The father’s evidence, confirmed by Ms JJ, is that the remote rural property at Town CC comprises a cottage, partially roofed and without some walls, on a small landholding. The cottage is powered by solar energy and served by tank water. The cottage is incomplete and described as a “bit of a shambles” by the father, with a building material and rocks strewn around. Clearly, until completed, the premises present a physical risk to the children should they attend and a risk by reason of its remoteness from Community Services.
The circumstances justifying the other restraints are self-evident.
As to the mother and father, the Independent Children’s Lawyer sought restraints that, in summary, provided for each of them to be restrained from:
a)consuming illicit drugs or being under the influence of alcohol whilst the children are spending time with them and in the period 12 hours prior to such time;
b)abusing, insulting or denigrating the children or the other party or a member of the other parties’ family or household;
c)discussing any allegation made or evidence given in these proceedings to or in the presence of the children or permitting any other person to do so;
d)exposing the children to any form of domestic violence, including verbal violence or abusive language;
e)physically disciplining or striking any of the children;
f)questioning the children about the appropriateness of their carer or any carer’s partner’s behaviour or parenting;
g)failing to take medication as prescribed by a medical practitioner; and
h)approaching, harassing or intimidating each other.
In the context of this matter, as discussed above, each of these restraints are reasonable and in the best interests of the children.
The Independent Children’s Lawyer sought an order facilitating each of the parents submitting to random drug testing no more than once per month, unless otherwise agreed, as directed by the Department. In relation to each of the parents’ history, this presents as an important protective measure for the children.
In addition, the Independent Children’s Lawyer sought an order that the mother and the father inform the Department of any change of residential address or telephone number within seven days. Once again, this order is important for the protection of the children should they be in either parents’ care in the absence of supervision.
The Independent Children’s Lawyer sought authority for the father to obtain relevant information about the children’s health, education and development upon the father requesting that information from the Department, with such information to include school reports and photographs. Such an arrangement is appropriate and can only enhance the father’s sense of engagement with the children.
Otherwise, the Independent Children’s Lawyer sought and was provided with a written undertaking by the father’s partner, Ms JJ, in the following terms:
a)That I will be present when the children are spending time with their father at my premises.
b)That I will immediately inform the Secretary’s delegate if:
i)whilst the children are spending time with the father, they come into contact or communicate with the mother.
ii)The father takes the children to Lot 1, BB Street, Town CC without the written consent of the Secretary’s delegate.
iii)The father consumes or supplies illicit drugs or is charged by a law enforcement agency with a criminal offence.
c)That I will submit to random urinalysis drug testing no more than once per month unless otherwise agreed as directed by the Secretary or his delegate.
What orders should be made?
At the conclusion of evidence the matter was stood down to facilitate discussions between the father, the Independent Children’s Lawyer and counsel for the Department.
The Court was provided with a minute of order setting out the proposed orders agreed to by the father, the Independent Children’s Lawyer and counsel for the Department.
In summary, those proposed orders provided for:
a)parental responsibility for the children to repose in the Department;
b)for the children to live as directed by the Department;
c)for the children to spend supervised time with the mother on a minimum of four occasions per year for a period of up to four hours on each occasion subject to injunctive restraints referred to above, with such time to occur on dates and at times as agreed between the Department and the mother and, failing agreement, on a date and at a time as nominated by the Department;
d)for the children to spend time with the father commencing once per fortnight for an hour with that time increasing by an hour each subsequent month, and then commencing July 2013, day contact between 10.00 am and 4.00 pm once a month for three months, and thereafter, overnight time from 4.00 pm one day to 4.00 pm the next day as agreed and otherwise at such other times as may be agreed between the Department and the father; and
e)that the father’s time until July 2013 to be supervised as nominated by the Department, and thereafter, the father’s time to take place at the home of Ms JJ and in her presence.
The Court is satisfied for the reasons set out above that the orders proposed by the father, the Independent Children’s Lawyer and the Department are in the best interests of the subject children.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 April 2014.
Legal Associate:
Date: 4 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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Procedural Fairness
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